Civilian Immunity in Foundational Islamic Strategic Thought: A Historical Enquiry Professor Joel Hayward English Monograph Series—Book No. 25 And fight in the way of God with those who fight against you, but aggress not; God loves not the aggressors. Cattle 190 Civilian Immunity in Foundational Islamic Strategic Thought: A Historical Enquiry Professor Joel Hayward Civilian Immunity in Foundational Islamic Strategic Thought: A Historical Enquiry ISBN: 978-9957-635-29-9 Jordan National Library Deposit No: 2018/7/3648 © 2018 The Royal Islamic Strategic Studies Centre Amman, Jordan All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying or recording, or by any information storage and retrieval system, without the prior written permission of the copyright holder. Views expressed herein do not necessarily re flect those of The Royal Islamic Strategic Studies Centre or its advisory board. Typeset by M AbdulJaleal Nasreddin Set in Garamond Premier Pro Printed in Jordan Calligraphy courtesy of www.FreeIslamicCalligraphy.com contents Foreword v About the Author vi Civilian Immunity 1 Endnotes 31 iii foreword This study analyses the Qur’anic revelation and the preaching and practices of the Prophet Muhammad in order to ascertain what Islam in its initial manifestation taught regarding the responsibilities of Islamic armies and warriors towards the people that we nowadays call civilians and other non-combatants. It is clear that the divine revelation and the Prophet of Islam ushered in an era of humanity during warfare exceeding that found previously in Arabia and indeed virtu- ally anywhere in the world. Muhammad did not intend war and its ravages to involve whole communities, but, rather, to involve only the combatants, whose aggression and willing- ness to take up arms made them culpable and subject to armed resistance. Understanding that Allah permitted self-defence against attack, he directed warfare to the attackers, but not to the enemy force’s women, children, and elderly. Indeed, in keeping with modern international humanitarian law he forbade their deliberate targeting, unless they surrendered their rights to protection by taking part in combat. Extending this right to protection to the monks and other clergy who devoted themselves to religious practices, and then even to the kinds of property that we now call civilian infrastructure, Muhammad created a widespread environment of security that safeguarded the lives, and way of life, of most people even in warring communities. Popular misconceptions fuelled by the indiscriminate atrocities of Al-Qaeda, ISIS, Boko Haram v and other violent extremist groups are simply not based on an unbiased reading of the historical evidence. That evidence tells a totally different story to theirs: of a close compati- bility between the early Islamic practices under the Prophet Muhammad’s direction and the ethical code of civilian immu- nity embedded within western Just War theory and interna- tional humanitarian law. Aside from the combatants, Muslims were not to kill or otherwise harm the innocent and they were not to destroy their homes, infrastructure or means of survival. about the author Professor Joel Hayward is a New Zealand scholar, writer and poet who currently serves as Professor of Strategic Thought at the National Defense College of the UAE. He has held various academic posts, including Chair of the Department of Humanities and Social Sciences at Khalifa University (UAE) and Dean of the Royal Air Force College (UK). He is the author or editor of over a dozen books and monographs and many peer-reviewed articles, mainly in the fields of history and strategic studies. These includeWarfare in the Qur’an (2012) and War is Deceit: An Analysis of a Contentious Hadith on the Morality of Military Deception (2017). He has given strategic advice to political and military leaders in several countries, has given policy advice to prom- inent sheikhs, and was tutor to His Royal Highness Prince William of Wales. In 2011 he was elected as a Fellow of the Royal Society of Arts and in 2012 he was elected as a Fellow of the Royal Historical Society. In 2016 he was named as the "Best Professor of Humanities and Social Sciences" at the vi 2016 Middle East Education Leadership Awards. Professor Joel is also active in the literary arts. He has published three books of fiction and four collections of poetry. vii Civilian Immunity in Foundational Islamic Strategic Thought: A Historical Enquiry Particularly since the Second World War—a global confla- gration that left more than sixty million people dead, with around two-thirds of them being civilians—there has been a worldwide desire to protect civilians from harm during conflicts. This has led to the strengthening of both moral phil- osophical positions and specific international humanitarian laws on the need to ensure that civilians and other non-com- batants are not deliberately targeted or carelessly attacked. Four years after the end of the Second World War, in 1949, the nations of the world signed and ratified theGeneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention. While the other three conventions deal with combatants, the Fourth Geneva Convention is the first body of international humanitarian law to deal specifically and thoroughly with protections for civilians during wartime. Additional protocols were added to the Geneva Conventions in 1977, following the bloody and controversial Vietnam War, further strengthening the laws protecting civilians and non-combatants. Within the Western philosophical tradition throughout the last two thousand years a body of ideas commonly known as “Just War” has increasingly stressed the need for military forces to distinguish between combatants and non-combat- ants, including civilians, and for the need for the latter to be exempt, as far as is reasonable and possible, from suffering and killing during war. At times closely linked with the reli- 3 gion of Christianity and shaped and championed by the clergy, Just War concepts are unmistakably imbedded in the Geneva Conventions. This does not mean that Christianity has a unique position on the need to safeguard civilians during wartime. All the major faiths have advanced similar ideas. Civilians and other non-combatants, all religions agree, should not be treated as hostile and punished with violence or cruelty. This study will show that, evolving in parallel with Christian Just War ideas, Islamic law and philosophy also advanced ever-strengthening rules and norms on the need to minimize harm during wartime to those whom we now call civilians. Right from the first Qur’anic revelation in the year 610 CE, the Islamic Prophet Muhammad and his followers, and the scholars who began to transform orally conveyed ideas, rules and practices into written law and philosophy in the eighth and ninth centuries CE, advanced ideas about warfare that included the responsibility of Muslim leaders, commanders and combatants to protect civilians and mini- mize their suffering. The Arabic equivalent of a word for “civilian” does not appear in the Qur’an, Islam’s holy book, and it cannot be found as a simple, single word in the ahadith, the recorded sayings of the Prophet Muhammad. We should not be surprised. In the West, the English word “civilian” (from an Old French root with a different meaning) only gained its current meaning in the nineteenth century as someone who is not in a military or paramilitary force. Yet the concept of a class or category of people who should not be targeted or otherwise harmed can be found in both the Qur’an and the ahadith, and these two 4 sources will be used to reveal the origins of the Islamic position that the people we now call civilians should be protected. This study maintains a tight focus only on the lifetime of the Prophet Muhammad and his closest companions in order to shed light on what the earliest extant sources say about Muhammad’s own understanding and practice of civilian and noncombatant protections during wartime. The varied and sometimes contradictory opinions of classical Islamic fuqaha’ (jurists)—most from the ninth to thirteenth centu- ries CE—will be only examined in order to clarify what the Prophet might have meant by particular words or actions. How those scholars later translated the original framing concepts regarding the responsibilities and rights of combat- ن ت ت ن أ ت ت and ( ا �ل���م���ح�ا ر ن��ت�� and , ا �ل���م��� �ا ���ل�ت�� , ا �ه�ل ا �ل�������ا )ل ants, fighters, warriors ن ن ن ت ت ن into ( �ت�ر ا �ل���م���ح�ا ر ن��ت�� and �ت�ر ا �ل���م��� �ا ���ل�ت� )� non-fighters, non-warriors written laws and philosophies as part of the Islamic fiqh (juris- prudence) is covered elsewhere in books of jurisprudence. This study is a work of history, not of fiqh. The author is a historian, not a theologian or faqih (jurist). Using the estab- lished methodology of the historical discipline, this study attempts to reconstruct seventh-century events by evaluating and interpreting the earliest sources, all the while keeping issues of truth, objectivity and bias firmly in mind. It does not attempt to confront the fiqh as it later evolved, but to reach beyond it, or more accurately behind it in time, to the histor- ical events that once occurred in seventh-century Arabia. As a modest contribution to the Sirah literature (the Prophet’s biography), it attempts to illuminate thematically rather than merely chronologically certain practices from within the life- time of the Prophet Muhammad. Its purpose is expository and 5 empirical, showing how and why things happened rather than being normative and offering guidance or direction on how things should be done now.